Gill v Clarence City Council

[2006] TASSC 112

[2006] TASSC 112

CITATION:                 Gill v Clarence City Council [2006] TASSC 112

PARTIES:  GILL, Philip
  v
  CLARENCE CITY COUNCIL

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  LCA 58/2006
DELIVERED ON:  22 December 2006
DELIVERED AT:  Hobart
HEARING DATE:  15, 19 September 2006
JUDGMENT OF:  Tennent J

CATCHWORDS:

Magistrates – Appeals from and control over magistrates – Tasmania – Motion to review - The hearing – Generally – Numerous grounds of review – Objections to admissibility of evidence not raised at hearing – Importance of articulating grounds.

R v Pirimona 136/1998, applied.
Tobin v Dodd [2004] WASCA 288, Blake v R 29/1997, referred to.
Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
             Applicant:  C P R Hill
             Respondent:  J A Campton
Solicitors:
             Applicant:  Finlay Watchorn
             Respondent:  Murdoch Clarke

Judgment Number:  [2006] TASSC 112
Number of paragraphs:  92

Serial No 112/2006
File No LCA 58/2006

PHILIP GILL v CLARENCE CITY COUNCIL

REASONS FOR JUDGMENT  TENNENT J

22 December 2006

1. On 4 August 2006, a magistrate made orders following a hearing for the destruction of three dogs pursuant to the Dog Control Act 2000 ("the Act"), s62, and fined the applicant for a number of breaches of the Act. The applicant seeks a review of the learned magistrate's decision and consequent orders.

Course of proceedings in the lower court

1. On 29 September 2003, the Clarence City Council ("the respondent") made an application to the Court of Petty Sessions in Hobart for orders in respect of three dogs pursuant to the Act, s62. In respect of each dog the respondent sought that the dog be seized and destroyed. The applications were numbered 95331/03, 95332/03 and 95333/03 and related to dogs described respectively as:

-a black/tan coloured Doberman cross female dog named "Chloe", registered to the applicant with disc number 8002,

-a black/tan coloured Doberman cross female dog named "Josie", registered by the applicant with disc number 8003, and

-a tan/black coloured German Shepherd female dog named "Bella", registered by the applicant with disc number 5869.

1. The applications came before a magistrate on 11 December 2003 and were adjourned sine die because the applicant had left the State. On 10 May 2006, the applications were relisted at the request of the respondent and, in the absence of the applicant, a warrant pursuant to the Act for the "arrest" of the dogs was granted. On 24 May 2006, the respondent filed with the Court of Petty Sessions a complaint numbered 92139/06. The charges laid against the applicant by that complaint were:

"CHARGE 1

Date of Offence:   On or about the 17 May 2006

Charge:                Unregistered Dog

Breach of: Section 8(1) of the Dog Control Act 2000

Particulars:           That on or about the 17^th day of May 2006, Philip Gill was the owner of a black female Doberman cross named 'Ebony' (''the dog') and that the dog was over the age of six (6) months and was unregistered under the Dog Control Act 2000 and the Complainant avers that on the said date Philip Gill was the owner of the dog and the dog was unregistered and was in the City of Clarence in Tasmania.

CHARGE 2

Date of Offence:   On or about the 17 May 2006

Charge:                Unregistered Dog

Breach of: Section 8(1) of the Dog Control Act 2000

Particulars:           That on or about the 17^th day of May 2006, Philip Gill was the owner of a tan black coloured German Shepherd female dog. named 'Bella' ('the dog') and that the dog was over the age of six (6) months and was unregistered under the Dog Control Act 2000 and the Complainant avers that on the said date Philip Gill was the owner of the dog and the dog was unregistered and was in the City of Clarence in Tasmania.

CHARGE 3

Date of Offence:   On or about the 17 May 2006

Charge:                Unregistered Dog

Breach of: Section 8(1) of the Dog Control Act 2000

Particulars:           That on or about the 17^th day of May 2006, Philip Gill was the owner of a black tan coloured Doberman Cross female named 'Chloe' ('the dog') and that the dog was over the age of six (6) months, and was unregistered under the Dog Control Act 2000 and the Complainant avers that on the said date Philip Gill was the owner of the dog and the dog was unregistered and was in the City of Clarence in Tasmania.

CHARGE 4

Date of Offence:   On or about the 17 May 2006

Charge:                Keeping Several Dogs

Breach of: Section 50 of the Dog Control Act 2000

Particulars:           That on or about the 17^th day of May 2006, Philip Gill was the owner of a black tan coloured Doberman Cross female named 'Chloe' and a tan black coloured German Shepherd female dog named 'Bella' and a black female Doberman cross named 'Ebony' ('the dogs') and that on the said date Philip Gill did not have a licence to keep at the premises at 677 Rifle Range Road, Sandford in Tasmania or any other premises in the City of Clarence in Tasmania more than 2 dogs over the age of 6 months.

CHARGE 5

Date of Offence:   On or about the 17 May 2006

Charge:                Warning Signs

Breach of: Section 33 of the Dog Control Act 2000

Amendments to Complaint No 92139 of 2006

The particulars of the remaining charge 5 should be deleted and substituted with:

That on or about the 17^th day of May 2006, Philip Gill was the owner of a tan black coloured German Shepherd female dog named 'Bella' and a black tan coloured Doberman cross female named 'Chloe' ('the dogs') which are declared dangerous dogs and that on the said date Philip Gill failed to ensure that signs of an approved type warning of the presence of the dogs were displayed at every entrance to the premises on which the dogs were being kept, being 677 Rifle Range Road, Sandford in the City of Clarence in Tasmania.

CHARGE 6

Date of Offence:   On or about 17 May 2006

Charge:                Fail to wear approved collar

Breach of: Section 32(c) of the Dog Control Act 2000

Particulars:           That on or about the 17^th of May 2006, PHILIP GILL was the owner of a tan black coloured German Shepherd female dog named 'Bella' ('the dog') which is a declared dangerous dog and that on the said date Philip Gill failed to ensure that the dog wore an approved collar at all times.

CHARGE 7

Date of Offence:   On or about 17 May 2006

Charge:                Fail to wear approved collar

Breach of: Section 32(c) of the Dog Control Act 2000

Particulars:           That on or about the 17^th of May 2006, PHILIP GILL was the owner of a black tan coloured Doberman Cross female named 'Chloe' ('the dog') which is a declared dangerous dog and that on the said date Philip Gill failed to ensure that the dog wore an approved collar at all times.

CHARGE 8

Date of Offence:   On or about 17 May 2006

Charge:                Fail to Microchip

Breach of: Section 29(2) of the Dog Control Act 2000

Particulars:           That on or about the 17th of May 2006, PHILIP GILL was the owner of a black tan coloured Doberman Cross female named 'Chloe' ('the dog') which is a declared dangerous dog and that on the said date Philip Gill failed to ensure that the dog was implanted in an approved manner with an approved microchip or any microchip within 30 days after service of the notice or 14 days after dismissal of the appeal."

1. When the matter came on for hearing on 14 June 2006, counsel for the respondent indicated there were four matters for hearing, the three applications from 2003 and the 2006 complaint.  The applicant, who appeared in person that day, said before evidence was led, "I would plead not guilty to everything at this stage."  Evidence was taken over three different days.  The applicant was represented on the last two.  The learned magistrate reserved his decision on 18 July, and on 4 August 2006, he said at the beginning of his decision:

"Mr Gill has been charged with a number of offences under the Dog Control .Act 2000. He has been charged with 3 charges of keeping unregistered dogs; 1 charge of keeping several dogs; 1 charge of not having warning signs in respect of dangerous dogs; failure to microchip a dangerous dog; and 2 charges of failure to have dogs wear an approved collar.

Applications have been made by the Council to the Court for orders that 3 dogs owned by Mr Gill be destroyed pursuant to section 62 of the Dog Control Act 2000. Other orders are also sought under that Section.

At the conclusion of the case Counsel for Mr Gill conceded that the Council had established that Mr Gill was guilty of various charges and that the only issue that was contested was whether and what orders the Court should make in respect of the applications made under section 62 of the Dog Control Act 2000."

1. He then canvassed the evidence, made findings and made orders as follows:

"ORDERS:

1      I direct this order to the Dog Control Officer of the Clarence City Council.

2      I order that:

(a)          A tan/black/sable coloured, female, German Shepherd dog named 'Bella' owned by Phillip Gill be destroyed.

(b)          A black/tan coloured, female, Doberman cross dog named 'Josie' owned by Phillip Gill be destroyed.

(c)          A black/tan coloured, female, Doberman cross dog named 'Chloe' owned by Phillip Gill be destroyed.

3I direct that each of the dogs be destroyed within 2 weeks of the date of the making of these orders or within 2 weeks of the seizure and detention of any dog presently not detained by the Clarence City Council.

4I order that the black/tan coloured, female, Doberman cross named 'Josie' owned by Phillip Gill be seized and detained by the Clarence City Council, its servants or agents, pending destruction of that dog.

5I order that the owner of the dog, Phillip Gill, pay the legal costs of the Clarence City Council in respect of the application and pay the costs named by the Council in seizing and detaining the dogs and costs of destruction.

6I order that the owners of the dog, Phillip Gill, pay compensation to Robert Groombridge and Margaret Cooling. The assessment of such damages to be adjourned sine die.

7The applicants Solicitor to prepare any documentation incorporating these orders which may be desirable for my signature."

1. The proceedings sheet on complaint number 92139/06 for the date 4 August 2006 has the following endorsement:

"-4 AUG 2006

Pleads and Req Adj
Appears
Pros'n             Campton

Def't                Barnes

Written decision handed up including orders in relation to dogs (attached)

# Proved

Plea in mitigation on complaint

Fine        $100-00
Costs      $  42-35

To pay     3 months

Plus Council Costs to be taxed at 75% of the Supreme Court scale."

1. There are no convictions recorded, nor is there any indication as to precisely what the fine of $100 relates to, save the words "on complaint".  Since by reference to the Sentencing Act 1997, s7, it is not possible to impose a fine without conviction, it can only be assumed all parties took the view convictions had been recorded on all charges and a fine imposed as a global penalty. There were clearly orders made pursuant to the Act, s62.

1. The notice of review filed 11 August 2006 contained five grounds of review in the following terms:

"THE GROUNDS OF THE NOTICE TO REVIEW ARE AS FOLLOWS:

1…

2The Learned Magistrate failed to give any or any adequate or appropriate weight to the inconsistent evidence relating to the type, breed and/or other identifying features or marks of the dogs and upon which he relied for the purposes of justifying his orders ('such orders') pursuant to Section 62 of the Act.

3The Learned Magistrate erred in finding that one and/or both of the dogs and which are the subject of such orders were the same dogs referred to in the evidence which was accepted by him.

4On the basis that the Applicant was denied natural justice by the Learned Magistrate in that he was not permitted to cross examine witnesses on issues relevant to the charges and/or the orders sought pursuant to Section 62 of the Act.

5That the Learned Magistrate expressed and/or displayed bias towards the Applicant during the course of the hearing and prior to the conclusion of the evidence and the making of the orders."

1. At the hearing, application was made to add 14 further grounds in the following terms:

"FURTHER GROUNDS OF NOTICE TO REVIEW

6         The Learned Magistrate erred in law and/or fact in making an order for the destruction of the dog named 'Josie' when there was insufficient admissible evidence to satisfy him beyond reasonable doubt that such an order was appropriate.

7         The Learned Magistrate erred in law and misdirected himself when he decided that the issue of the identity of such dogs could be the subject of a further determination by the Magistrates Court following the making of such orders.

8         The Learned Magistrate failed to allow and/or raise with the parties, the issue of addressing him in relation to the admissibility and/or weight to be placed upon the nature and content of the Applicant's questions during the course of his cross-examination of witnesses and whether the content of such questions could be lawfully used as evidence and/or admissions by him.

9 The Learned Magistrate erred in law in permitting and/or admitting into evidence inadmissible evidence in the form of hearsay and upon which he relied and/or could have relied and/or could have been seen to rely upon for the purpose of making such orders.10 The Learned Magistrate erred in law in permitting and/or allowing the Notice declaring the dogs to be dangerous, being Exhibit PO4 to be admitted into evidence when such Notice was invalid and/or void and/or did not comply with the provisions of the Act in that they were not signed and/or authorised by the General Manager as required by the said Act.

11 The Learned Magistrate erred in law in permitting and/or allowing into evidence Exhibits upon which he relied when considering whether such orders were appropriate when such Exhibits were inadmissible and did not comply with the provisions of the Act.

12        In the absence of sufficient admissible evidence that all or any of such dogs should have been declared dangerous dogs then the Learned Magistrate erred in law in finding charges 5 (as amended), 6, 7 and 8 in Complaint Number 06/92139 had been proved or established beyond reasonable doubt.

13 The Learned Magistrate erred in law and/or misdirected himself by taking into account the conduct of the Applicant in determining and exercising his discretion as to whether such orders were appropriate in the circumstances, given Section 62 of the Act.

14        The Learned Magistrate erred in the exercise of his discretion and what relevant and admissible evidence he could consider or take into account when he made orders for the destruction of the dogs.

15 The Learned Magistrate misdirected himself in finding and/or holding that Counsel for the Applicant had conceded the necessary ingredients of the charges pursuant to Sections 50 (a) 33 and 32 (c) of the said Act .

16 The Learned Magistrate erred in failing to make findings of fact and/or to even consider the evidence in relation to charge 8 being an alleged breach of Section 29 (2) of the Act before finding such charge proved beyond reasonable doubt.

17        The Learned Magistrate erred in failing to call for the production of and to admit into evidence the photograph shown to him during the course of Mrs Coolings Evidence in Chief and which the applicant was not given the opportunity to see or to enter into evidence at a time when he was unrepresented (pages 80 and 81 of Judges papers).

18        The Learned Magistrate erred and misdirected himself in finding that the three dogs were dangerous when such finding was not supported by the admissible evidence (page 202 of the Judges papers).

19        … ."

1. Grounds 1 and 19 were abandoned at the hearing.

Hearing of review

1. At the commencement of the hearing, counsel for the applicant indicated there was no challenge to the convictions in respect of counts 1, 2, 3 and 4 on complaint number 92139/06 but there was a challenge in respect of those relating to counts 5, 6, 7 and 8.  Implicit in this appeared to be an acceptance that the applicant had been found guilty of and convicted in respect of all charges on the complaint.

1. Much of the hearing of this review was devoted to the status of what was exhibit P4 before the learned magistrate, which the respondent contended was a declaration pursuant to the Act, s29, but which the applicant contended was not a validly made declaration. However the hearing otherwise ranged over a number of matters, many without a clear indication of what ground they related to and some apparently without reference to any specific ground. I have attempted to "match" submissions with grounds where possible and have largely dealt with matters in the order they arose.

The Dog Control Act 2000

1. Before dealing with the specific grounds of review, it is necessary to look at the structure of the Act. The Act, Div3 of Pt3, is headed "Dangerous Dogs". Relevantly ss29, 31 and 32 provide:

"29      (1) A general manager, by notice served on the owner of a dog –

(a)may declare that dog to be a dangerous dog if –

(i)     the dog has caused serious injury to a person or another animal; or

(ii)    there is reasonable cause to believe that the dog is likely to cause serious injury to a person or another animal; and

(b)is to give reasons for the declaration in the notice; and

(c)is to advise the owner of the right of appeal under section 31.

(2)       The owner of a dog declared to be a dangerous dog must ensure that the dog is implanted in an approved manner with an approved microchip within –

(a)30 days after service of the notice, if an appeal is not made under section 31; or

(b)14 days after an order is made under section 31(2)(a), if an appeal is made under that section and such an order is made."

"31 (1) An owner of a dog declared to be a dangerous dog under section 29 may appeal against the declaration to a magistrate within 14 days after service of the notice.

(2)       A magistrate may order that –

(a)the declaration is confirmed; or

(b)the declaration be set aside.

(3)       If a magistrate sets aside a declaration in respect of a dog, a general manager may only declare the dog to be a dangerous dog in respect of behaviour of the dog that occurs after the decision of the magistrate.

32        The owner or person in charge of a dangerous dog must ensure that –

(a)the dog, when in a public place –

(i)is muzzled so as to be unable to bite a person or animal; and

(ii)     is on a lead not exceeding 2 metres that is sufficient to control and restrain the dog; and

(iii)    is under the control of a person at least 18 years of age; and

(b)the dog, when not in a public place –

(i)     is housed in a childproof enclosure; or

(ii)     when not under adult supervision, is secured and restrained by a lead not exceeding 2 metres; and

(c)the dog wears an approved collar at all times; and

(d)the microchip implanted in the dog is not removed without the approval of the general manager."

1. The Act, Pt4, deals with legal proceedings.  Relevantly ss60, 61 and 62(1),(2) and (3) provide:

"60      (1)       In any proceedings for an offence against this Act –

(a)except as provided in section 13(2), a person shown in the register to be the owner of a dog is taken to be the owner of the dog at the material time unless the person proves that another person was the owner at the material time; and

(b)if the dog is proved to be in the apparent ownership of any person, that person is taken to be the owner of that dog.

(2)       In any proceedings for an offence against this Act, the fact that the dog immediately before the alleged offence was in company with, or closely following, a person is evidence that the person was the owner of that dog.

61        (1)       In any proceedings for an offence against this Act –

(a)an averment in a complaint that a specified person was the owner of a dog or that any dog was at any specified time unregistered is evidence of those matters; and

(b)the onus of proving that a dog was registered at the material time or was under the age of 6 months is on the person making that assertion; and

(c)a microchip implanted in a dangerous dog is evidence of the identity of that dog.

(2)       Except as provided in section 11(2), a dog without a collar bearing a registration disc is taken to be an unregistered dog.

(3)       Proof that a person is the occupier of any premises where a dog is kept is evidence that the person is the owner of the dog.

(4)       In any proceedings for an offence against this Act, a copy of, or extract from, any entry in a register certified by the general manager is evidence of the matters so certified.

62        (1)       If a dog is shown to the satisfaction of a court to be a dog that has attacked a person or an animal or a dog that has killed another animal, the court may order that the dog be destroyed in accordance with this section.

(2)       An order for the destruction of a dog is to state –

(a)to whom it is directed; and

(b)within what period it is to be put into effect.

(3)       In addition to the order under subsection (1), or instead of such an order, a court may do one or more of the following:

(a)direct that an order be remitted in specified circumstances;

(b)order the seizure and detention of the dog;

(c)order the general manager to declare the dog to be a dangerous dog;

(d)order that the dog be disposed of;

(e)order an authorised person to give effect to the order;

(f)give any necessary directions to make the order effective;

(g)order that the owner of the dog pay –

(i)any costs incurred in making the order effective; and

(ii)     compensation in respect of any animal or person who suffered any bodily injury or damage to property as a result of the actions of the dog; and

(iii)    any costs incurred by the council in seizing and detaining the dog;

(h)make any other order it considers appropriate."

1. It is apparent from a reading of those sections that the existence of a dangerous dog declaration pursuant to s29 is not a pre-condition for an order pursuant to s62. A magistrate dealing with an application pursuant to s62 must be satisfied that a dog has attacked a person or an animal. Therefore the only relevance the validity or otherwise of the dangerous dogs declaration could have was to the sustainability or otherwise of the convictions on counts 5 to 8 on the complaint because the offences alleged all depended on the existence of a validly made declaration.

Grounds 10 and 12 - the "dangerous dog" declaration

1. Exhibit P4 was a copy of a letter dated 26 August 2003 from Mr John Toohey, Manager Customer Services, of the Clarence City Council to the applicant.  The letter provided as follows:

"Declaration Of Dangerous Dogs

I refer to the above and declare, in accordance with Section 29 of the Dog Control Act 2000, that a tan/black/sable coloured, female, German Shepherd dog named 'Bella', a black/tan coloured, female, Doberman Cross dog named 'Josie' and a black/tan coloured, female, Doberman Cross dog named 'Chloe', to be dangerous dogs.

This declaration has been made on the basis that there is reasonable cause to believe that the dogs are likely to cause serious injury to a person or another animal, as set out in Section 29 (1) (a) (ii) of the Dog Control Act 2000. The reasons for the declaration are:

·An incident on 17 April 2003, in which your dogs were at large and displayed aggressive behaviour towards persons;

·An incident on 6 May 2003, in which your dogs displayed aggressive behaviour towards persons;

·An incident on 16 June 2003, in which your two Dobermans were at large and displayed aggressive behaviour towards persons;

·Statements relating to these incidents; and

·Information provided by City Rangers.

I further advise, that in accordance with Section 31 of the Dog Control Act 2000 there is the right of appeal to a magistrate against the declaration of the dogs. The appeal must be lodged within fourteen (14) days of the notice being served on you.

Having been declared dangerous, there are now certain obligations under this Act that must be complied with and these are detailed as follows:

·The dogs are to be implanted in an approved manner with an approved microchip within 30 days of the service of this notice, if no appeal is made.  This microchip is not then able to be removed without the approval of the General Manager.

·Approved warning signs are to be displayed at every entrance to the premises at which the dogs are kept.

·The dogs when in a public place must be:

-muzzled so as they are unable to bite a person or an animal and;

-on a lead not exceeding 2 metres that is sufficient to control and restrain the dogs; and

-under the control of a person at least 18 years of age.

·The dogs when not in a public place:

-are to be housed in a childproof enclosure; or

-when not under adult supervision, is secured and restrained by a lead not exceeding 2 metres; and

·The dogs are to wear an approved collar at all times; and

·If at any time the dogs go missing, die, are lost, are sold or given away to another owner, notice is to be provided to the General Manager within 24 hours.

As your dogs have now been declared dangerous Council has a responsibility to ensure the safety of the public. Council officers will therefore conduct an assessment of your site to ensure that your property is sufficiently secure to contain the dogs within its boundaries. If not, the dogs will be seized under Section 37 of the Act until such time as the City Ranger can be satisfied that the property is secure for those purposes.

Would you please notify Mr Nick O'Rourke if it [sic] your intention to appeal this declaration.  Mr O'Rourke will also be able to provide further information on micro chipping, approved signs and collars.  If you have any other queries in relation to this matter please contact the Manager of Customer Service, Mr John Toohey on 6245 8703.

Yours sincerely

[signed]

John Toohey

Manager customer services"

1. The letter clearly purports to be a declaration pursuant to the Act, s29. It was admitted into evidence and relied on as such. The learned magistrate heard evidence from Mr O'Rourke, an animal welfare officer with the respondent, that he prepared the letter for Mr Toohey to sign and personally served it on the applicant on 27 August 2003. On the hearing of the review, counsel for the applicant submitted that for various reasons the document was not a valid declaration and not admissible.

1. The Act required a declaration pursuant to s29 to be signed by the general manager of the respondent. Mr Toohey was the Manager Customer Services and not the general manager. Mr Toohey could only sign the declaration if power to do so was delegated to him by the general manager. The Act, s82, permitted the general manager to delegate functions or powers under the Act. There was no evidence put before the learned magistrate that any such delegation had been made. The learned magistrate did not query Mr Toohey's power to sign the document and there was no challenge to either its admissibility or its validity as a declaration on that or any other basis at the hearing.

1. Counsel for the applicant submitted it was irrelevant that a delegation may have, in fact, existed.  He submitted there was no evidence before the learned magistrate as to the existence or otherwise of a delegation and therefore the declaration was invalid and inadmissible.  This argument cannot possibly succeed.  The document is dated 26 August 2003.  The issue of whether it was a validly made declaration was not dependent on evidence of a delegation being tendered to a court nearly three years later.  It was dependent on the existence or otherwise of a delegation in 2003 authorising Mr Toohey to sign the document. 

1. Counsel for the respondent sought, pursuant to the Justices Act 1959, s110(2), to admit further evidence on the hearing of the review in the form of the relevant delegation by the general manager of the respondent to Mr Toohey. That was opposed by counsel for the applicant. With the agreement of counsel, the document of delegation sought to be admitted was taken de bene esse with a ruling to be given as part of the overall decision as to whether it would be admitted.

1. As to whether the further evidence should be admitted on this review, counsel for the respondent submitted that the validity of the declaration contained in the letter dated August 2003 was not challenged on any basis at the hearing before the learned magistrate.  Had this objection been taken at that point, the respondent could have addressed the issue.  To permit the respondent to rely now on the absence of the delegation at hearing, when one exists, would be to produce an injustice.

1. Counsel for the applicant raised a number of matters in support of his opposition to the admission of further evidence.  He submitted that counsel for the applicant at a particular point in the hearing before the learned magistrate did raise the issue of the validity of the declaration.  In support of this submission he referred to two parts of the transcript of proceedings, firstly at page 53 and then at page 58 line 25 of the judge's papers.  With respect, neither reference relates to that issue.  If regard is had to the surrounding parts of the transcript, it is apparent what counsel is talking about is the suggestion that two of the dogs may be dead and that any order could not therefore be made for their destruction.

1. Counsel for the applicant further submitted the document sought to be admitted purported to be a delegation from the general manager to Mr Toohey as at 1 July 2001 and there was no proof it was still in force as at the date of the letter of August 2003.  He also submitted it was a photocopy with an unexplained certification and there was no proof of compliance with a condition in it.

1. The document sought to be admitted is a photocopy of what purports to be an instrument of delegation dated 1 July 2001 signed by Roger Howlett, the General Manager of the Clarence City Council. It delegates by reference to the Act, s82, to Mr John Toohey, Manager Customer Services, the general manager's powers pursuant to s29. There is no evidence it has been revoked or that Mr Toohey has, in this or any other matter, acted in breach of the conditions of the delegation. As to its being a copy, again there is no suggestion it is other than a document forming part of the respondent's business records. There is no direct evidence it does. However its contents and nature satisfy me it is. There is a certification on the copy which it is put is that of the general manager. By reference in those circumstances to the Act, s63(4), counsel for the respondent says it is admissible.

1. The discretion given to the Court by the Justices Act, s110(2), to admit further evidence is wide and it is clearly, in my view, appropriate to exercise that discretion in favour of the respondent in this case. To do otherwise would potentially allow the applicant to raise an argument on review not raised at hearing, which, had it been raised at hearing, could have been met by the evidence now sought to be admitted. The document entitled Instrument of Delegation dated 1 July 2001 addressed to John Toohey will be admitted into evidence on this review.

1. Pursuant to the Act, s82, the instrument delegates to Mr Toohey the powers of the general manager pursuant to s29. I am satisfied that, as at 26 August 2003, by virtue of the delegation, Mr Toohey had authority to sign a declaration pursuant to the Act, s29. The applicant's challenge to the declaration on this ground cannot succeed.

1. The dangerous dogs issue also arose under ground 12 of the notice to review. The ground appeared to suggest that the learned magistrate may have needed further evidence before him to satisfy himself the declaration should have been made in the first place. With respect, if that was what was intended by the ground, it is misconceived. The learned magistrate, for the purpose of finding counts 5 to 8 inclusive on complaint number 92139/06 proved, was required to be satisfied that the dogs had been declared dangerous pursuant to the Act, s29. He was not required on the basis of the evidence before him to make a finding and declaration by reference to s29.

1. Once a dangerous dogs declaration had been made pursuant to s29, the applicant had a right, pursuant to the Act, s31, to appeal to a magistrate against the making of the declaration. There was no evidence of any successful appeal. The learned magistrate was in the circumstances entitled to rely on the declaration and was not obliged to revisit the sufficiency of the material which led to it. As a consequence of that finding, the challenge to convictions in respect of counts 5 to 8 on the complaint cannot be sustained on the basis the dogs had not previously been declared dangerous dogs. Grounds 10 and 12 in the notice of review must therefore fail.

Grounds 15 and 16

1. This ground relates to a statement made by the learned magistrate in the following terms in his decision:

"At the conclusion of the case Counsel for Mr Gill conceded that the Council had established that Mr Gill was guilty of various charges and that the only issue that was contested was whether and what orders the Court should make in respect of the applications made under section 62 of the Dog Control Act 2000."

1. Counsel submitted no such concession was made in respect of all charges.  He submitted that there was a concession in relation to the keeping of several dogs (count 4 on complaint 92139/06) and unregistered dogs (counts 1, 2 and 3), but there was no concession in relation to the issues of warning signs (count 5), failing to wear an approved collar (counts 6 and 7) and failing to microchip (count 8).  He submitted there was no plea of guilty, no concession and in fact no evidence or findings about such issues.  In those circumstances the convictions in respect of those particular charges could not be sustained.

1. The question of any concessions being made appears at pages 178 - 179 of the papers, being the transcript of proceedings, where the following exchange occurs during the course of submissions:

"HIS HONOUR:   Because there's a question that's intertwined with that.   We received no defence for keeping several dogs.

MR CAMPTON:   That's correct.

HIS HONOUR:   Right.   No defence for unregistered dogs?

MR CAMPTON:   No, that's correct.

HIS HONOUR:   No, so that's all conceded -

MR BARNES:   That's all conceded, your Honour.

HIS HONOUR:   No warning signs?

MR CAMPTON:   That's correct.

HIS HONOUR:   And failing to wear approved collar, we've received no - and two of those.   Failure to microchip - are those all factors that I should take into account when considering whether the dog should be destroyed, on the basis that you don't have bad dogs, you have bad owners."

Counsel for the applicant was a party to the discussion that took place. It was quite clear the learned magistrate was working through the factors which formed the basis of each charge to determine if there were an issue he needed to determine in relation to any of them.  The learned magistrate went on to discuss with counsel what relevance those various breaches might have to his determination about destruction.

1. At pages 188 - 189, a further exchange occurred in the following terms:

"MR CAMPTON:   With respect to the complaint before the Court, I won't deal with it in any great league because there - effectively, there was evidence of all of the elements required to prove each of those charges, many of them aren't opposed and there was no defence heard on any of it.

HIS HONOUR:   Well it was conceded by Mr Barnes, the other matters I think.

MR CAMPTON:   Yes.

MR BARNES:   They are and they'll just be pleas in mitigation, your Honour.

HIS HONOUR:   Yes."

At a later point, counsel for the applicant was given an opportunity to make a plea in mitigation in relation to the charges on the complaint.  He made no comment at all which might indicate no concession had been made that counts 5 to 8 had been made out.

1. I am satisfied from a reading of the transcript that the concession identified by the learned magistrate was in fact made by counsel for the applicant, either directly or by implication from what he said and did during the proceedings.  In those circumstances it was open to the learned magistrate, given there was evidence to support the allegations, not to make specific findings. Grounds 15 and 16 will fail.

Ground 17

1. Ground 17 of the notice to review relates to some photographs which were shown to the witness Mrs Cooling by counsel for the respondent.  She evidently looked at the photographs.  The only description of what was in the photos was from counsel.  He said at page 81 of the judge's papers:

"Your Honour, you'll hear evidence with respect to those photos, but those photos have been taken recently and at the age the dogs, they were of a far different description, there are no photos of the dogs at the relevant time."

There was no further evidence to establish what these photos were actually of.  Mrs Cooling was asked to hold them up so the magistrate could see them.  She did not identify what was in the photos as the dogs who she said attacked her, and in fact said whatever was depicted was not, certainly as to two of the dogs apparently shown, like the ones she came into contact with.

The photographs were useless from an evidentiary point of view when they were put to Mrs Cooling and there was no other evidence about them.  There was no reason, whether the applicant was unrepresented or not, for the learned magistrate to call for their production or admit them into evidence.  No error has been demonstrated on the part of the learned magistrate in failing to do so.

1. This ground of the notice to review must fail.

Ground 11

1. Counsel for the applicant submitted that a number of documents tendered to the learned magistrate were inadmissible because they had not been certified by the general manager of the respondent. He referred specifically to the documents which appear at pages 43, 44 and 45 of the judge's papers. Mr O'Rourke, the animal welfare officer, identified these as copies of the Dog Register maintained by the respondent. Counsel for the respondent tendered them by reference to the Act, s61(4), on the basis they were copies of the respondent's registration records of the dogs Josie, Bella and Chloe certified by the general manager. No objection was taken by counsel for the applicant in relation to this tender.

1. On this review counsel for the applicant submitted that the Act, s15, required the general manager to keep a register of registered dogs. An extract of that register could only be tendered if it were a copy certified by the general manager. He submitted there was no evidence it was so certified.

1. There was evidence from Mr O'Rourke that the documents tendered were extracts from the respondent's dog register.  Each of the documents had printed on it the words "I certify that this is a true copy of the original which I have sighted."  There is a signature underneath it.  Counsel for the respondent asserted, without challenge, that signature was that of the general manager.  The learned magistrate was in my view entitled to accept that unchallenged assertion.  I am satisfied the documents were properly admitted into evidence before the learned magistrate. Ground 11 of the notice to review must therefore fail. 

Grounds 2 and 3

1. Grounds 2 and 3 of the notice to review related to the issue of the identity of the dogs in respect of which orders were made.

1. The respondent sought orders in respect of three dogs which it identified by reference to sex, breed, colour and registration number.  The orders ultimately made related to the three dogs as so identified.  By these grounds, the applicant contended there was inconsistent evidence as to the type, breed and/or other identifying features of the dogs about which evidence was given, and the learned magistrate failed to give any or adequate weight to that fact, that is, the inconsistencies.  Further he erred in finding the dogs the subject of the orders were those he heard evidence about.  In essence, the contention was that the evidence did not support a finding that the dogs the subject of the applications and in respect of which orders were made, were the same dogs the subject of the evidence.

1. Records of the respondent were tendered to the court.  These records disclosed that the applicant had registered three dogs with the respondent in the year 2003/2004.  These were Chloe, a female black and tan Doberman cross born 1 December 2002 which had a disc number 8002, Bella, a tan, sable and black German Shepherd with a disc number of 5869, and Josie, a female black and tan Doberman cross born 1 December 2002 with a disc number 8003.  All dogs were registered to an address at 677 Rifle Range Road, Sandford.  I have already dealt with the admissibility of those records by reference to ground 11 of the review.

1. Mr O'Rourke told the court that in his role as an animal welfare officer he kept records of any interactions with the dogs described in the applications.  In his evidence which followed he made reference to a number of file notes and memoranda which were tendered without objection and became exhibits P1, P2, P3, P6,  P7 and P8 (4 pages).  There were no submissions actually directed towards these records although it may be inferred they are covered by ground 11 of the review.  Insofar as they are, I am of the view they were admissible.  Save for one they were file notes or memoranda prepared by the witness through whom they were tendered.  That other one was prepared by another officer.  However all were kept as part of the business records of the respondent.

1. Mr O'Rourke described the interactions dealt with by those file notes and memoranda.  The first related to an incident which it appears actually occurred on 16 April 2003.  Mr O'Rourke was called to Bayfield Street, Bellerive about a complaint of three dogs, a German Shepherd and two Dobermans, bailing up some people out walking.  Mr O'Rourke said he spoke to the applicant, who told him he was visiting his mother at number 34, he had the dogs in the car and they jumped out the window.  The applicant was warned about his responsibilities in controlling the dogs.  The learned magistrate characterised the behaviour of the dogs as having threatened a woman.  That characterisation did not appear in either the council's record or Mr O'Rourke's oral evidence. 

1. There was nothing in the file note or Mr O'Rourke's evidence which directly established the dogs, the subject of the report and evidence, were the dogs the subject of the applications.  Could this be inferred from the evidence as a whole?  There was no evidence the dogs registered by the applicant in the 2003/2004 financial year were also registered in the previous year.  There was no evidence the applicant had no other dogs registered with the respondent in the 2002/2003 year which is when this incident occurred.  The file note does however record the applicant told Mr O'Rourke that the dogs involved on 16 April were dogs registered to 677 Rifle Range Road.  The clear inference from the evidence by reference to the description of the dogs registered in the 2003/2004 year, the description of the dogs involved in the incident, the involvement of the applicant and his comment about where the dogs were registered is that the dogs Mr O'Rourke interacted with on 16 April 2003 were the dogs registered in the 2003/2004 year and therefore the dogs the subject of the application to the court.

1. There was scant evidence of the actual behaviour of the dogs on this occasion.

1. The next incident about which Mr O'Rourke had a file note was that involving Mr Groombridge on 6 May 2003.  The file note disclosed a council officer took a report from Mr Groombridge about an attack by three dogs at about 6.45pm that day.  The officer spoke with the applicant about the incident three weeks after it was said to have occurred.  At that time the applicant was identified as living at 123 Summerleas Road, Fern Tree.

1. Mr Groombridge told the court he "was attacked by three dogs" at around 6.30pm on 6 May 2003 when he was walking along the esplanade at Rose Bay.  He said:

"… three dogs come from nowhere and then started attacking.  I had had Shepherds myself and seen the Shepherd was the one to worry about, or the one I assumed to worry about, I was trying to back away towards a fence.  Two other dogs scored on me from behind and another –".

The learned magistrate then asked, "Were they biting or were they ..." and the witness replied:

"Yeah, biting, nipping, and being most aggressive, and yes, they were."

The witness was unable to give any description of the dogs he said came at him from behind.  As to the German Shepherd, he said it was "the one that got me on the hand and I think on the backside as well."

1. He told the court that a woman came up to him and apologised for the dogs' behaviour, saying that someone had threatened to kill them.  He then identified the woman as being a woman with the applicant in court.  He then said there was a male standing about 150 yards away who appeared to be carrying dog restraints.  That male walked away.  Mr Groombridge then said the woman got control of the dogs enough to get them away.  He waited for about 5 minutes and then walked on.  He said "the dogs flew me again."  The Shepherd came towards him.  He was asked if any of the dogs bit him on that occasion.  He replied:

"Yes I coped [sic] it on the back of the leg and I think on the hand, I'm not certain." 

He heard or saw the lady he had already identified calling the dogs from "the van up the road".  He then saw her meet up with the male he had previously seen with what he called the lead, and he said:

"… they got the dogs into the van after quite a considerable time … ."

Mr Groombridge took the registration number of the van the dogs were put in and identified it as a Ford Econavan bearing registration number CK 3176.  The witness confirmed it was the same three dogs in each incident and the same three which were put in the van.

1. The evidence of this witness would have supported a finding that the dogs concerned had attacked a person.  The only issue was whether they could be identified as the dogs the subject of the application.  The only way the dogs involved in the Groombridge incident could be confirmed as those the subject of the application was to connect them to the applicant.  Until Mr Groombridge was cross-examined, the only connection was by reference to two things, firstly the contact made by a council officer with the applicant some weeks after the event, and secondly the connection between the lady in court with the applicant and the dogs on the day.  Neither was conclusive, given the lack of any real description of the dogs by Mr Groombridge. 

1. When Mr Groombridge was made available for cross-examination by the applicant, the proceedings degenerated into what, from the transcript, appeared to be a three way discussion between the learned magistrate, the witness and the applicant.  The learned magistrate repeatedly attempted to stop the applicant just telling his story, requiring him to put questions to Mr Groombridge.  The applicant made certain statements during the course of what passed for cross-examination which were adverse to his interests in the sense that he placed himself at the scene of the alleged attacks with the lady identified by the witness as the person who gained control of the dogs who attacked. 

1. Mr Groombridge told the court during this phase of the hearing that the only other dogs he saw on his 25 minute walk that night were dogs on leads with two elderly ladies.  Neither of those dogs was a German Shepherd.  The applicant put to Mr Groombridge that he did not have three dogs loose and Mr Groombridge simply responded that three dogs bit him.  The applicant also put to Mr Groombridge that when he got hold of his German Shepherd which had broken its lead, someone was hitting him with a stick.  Mr Groombridge had already told the court that at the second confrontation with the dogs he had picked up a stick and poked it at the German Shepherd.

1. This cross-examination gave rise to another ground of the notice to review, ground 8.  It is somewhat unclear just what ground 8 meant.  The underlying objection seemed to be that the learned magistrate had used statements made by the applicant when he was cross-examining Mr Groombridge as evidence against him.  However the ground does not read in those terms, but more like a submission that the learned magistrate failed to allow or take submissions about what he should do with this material.  The learned magistrate did not take submissions about the issue.  He was clearly alert to it.  He raised it with the applicant, warning him to be careful about what he said, and he told counsel he would hear submissions about it.  It appears nobody remembered to do so.  The applicant's counsel did not refer to it.

1. It is difficult to tell from a transcript just how the interaction between the applicant, Mr Groombridge and the learned magistrate developed.  It may be that while some comments by the applicant appear as statements in the transcript, they were more in the nature of statements made to the witness requiring a response.  Certainly the applicant was putting his case to the witness.  However the putting of his case, where that case was not accepted by the witness, does not necessarily make his statements evidence upon which the respondent could rely to bolster its case.  It is obvious that Mr Groombridge did not accept what the applicant was putting to him.

1. In his decision, the learned magistrate clearly accepted the applicant's statements as evidence connecting the applicant to the dogs. The learned magistrate should have sought submissions about this but perhaps could be forgiven for not doing so.  The hearing appears to have been somewhat chaotic and disjointed and the applicant's counsel did not seek to raise the issue.  Ground 8 should succeed.  However its impact on this review is minimal because there is other evidence connecting the applicant to the dogs the subject of the Groombridge allegation.

1. In the file note which was exhibit P2 prepared by Mr O'Rourke, he said:

"The complainant supplied a registration number of a white econovan type vehicle to Council, CK 3176; it was later found that this vehicle was registered to Phillip Gill."

1. The clear inference from the evidence, absent the statements by the applicant during the course of cross-examination, was that he was the male, who together with a female, gathered together the three dogs about which Mr Groombridge complained and put them in his van. By reference to the Act, s60(2), that can be accepted as evidence he was the owner of those dogs. Given the registration of three dogs shortly thereafter, one of which was a German Shepherd, it was clearly open on the evidence to conclude the dogs Mr Groombridge complained of were the dogs the subject of the applications.

1. The next incident said to have occurred was one on 16 June 2003.  Mr O'Rourke had a file note which recorded a complaint by a Mrs Matthews about a dog biting her on the leg and three dogs being at large in Bayfield Street harassing persons.  Mr O'Rourke did not witness the alleged attack and that complainant was not called to give evidence.  However Mr O'Rourke did attend at 34 Bayfield Street about 15 minutes after receiving the complaint.  He prepared a lengthy file note the next day which recorded what he did.  That file note became exhibit P1.  He spoke to the applicant that day at 34 Bayfield Street about his three dogs, the applicant saying someone had let his dogs out of his van.  The file note detailed that Mr O'Rourke spoke to the applicant after he had locked his three dogs, a German Shepherd registered to 677 Rife Range Road and "two Shepherd x" in his van.  The note also detailed the steps subsequently taken by Mr O'Rourke and his dealings with the applicant over the next week or so about securing the dogs.  These included the securing of the dogs for a period at the home of Mrs Jan Needham in Siandra Street.

1. A police officer also attended that day, a Constable Smith (formerly Brazendale).  She told the court that while she was talking to the complainant, two dogs came out of 36 Bayfield Street.  She said they appeared to be Dobermans, one was darker on the head and they appeared to be young dogs.  The dogs came down the driveway towards where the officer and complainant were.  The dogs were barking, acting aggressively and showing their teeth.  The dogs ran back up the drive.  The officer then saw the dogs approach and begin to circle a boy walking up the road.  The officer went towards the boy.  The Doberman with the darker head lunged forward at the boy as if to bite.  The officer sprayed the dog with capsicum spray.  It was enough to make the dog back away.  The dogs came back a few minutes later and the other one lunged at the officer, baring its teeth.  She sprayed that dog and both dogs ran back and up the drive.

1. While the officer waited for information via radio, a man she identified as the applicant, arrived in a white van.  The officer approached him, believing him to be the owner of the dogs.  As he arrived, the dogs came out again, he called them, the dogs obeyed and jumped into the back of his van.  The applicant on that occasion said he had been staying at his mother's home at Bayfield Street and he identified the dogs as his.

1. There can be little doubt from the evidence relating to incidents that day that the dogs involved in the events described by the police officer were the applicant's dogs and that on that day there were three dogs on the loose which the applicant accepted as his.  Given the descriptions, and notwithstanding Mr O'Rourke's lack of reference to Doberman-like dogs, it was open to the learned magistrate to conclude the dogs that day were the same as those identified in the application.

1. The next incident about which there was evidence was one said to have occurred on 9 September 2003.  A Mrs Cooling told the court that at about 8am that day she was walking down to the end of Siandra Crescent, Geilston Bay when she heard dogs barking.  She saw three dogs, a German Shepherd and she believed two Rottweilers.  They all came at her and one bit her, although she was unable to say which one.  They kept coming at her and so she ran and jumped on a hedge and all three chased her.  She thought the one that bit her was the German Shepherd but she was so terrified she could not be sure.  She described those she referred to as Rottweilers as being "dark, they were dark in colour, and they were quite large."

1. Mrs Cooling told the court the dogs came from behind her in Siandra Crescent.  She did not see where they actually came from.  She said, however, that she had walked past a particular house in Siandra Crescent and there was a white van parked outside it and she heard rumbling and jumping around in the van.  She did not see where the dogs went after the incident and she did not see them with anyone.  Mr O'Rourke attended Siandra Crescent that morning.  He was directed to a house at 18 Siandra Crescent as being where it was alleged the dogs concerned had come from.  He identified that as being the house of Jan Needham where the applicant's dogs had been secured on an earlier occasion.

1. A Christopher Oates gave evidence about the incident alleged to have involved Mrs Cooling.  He told the court he lived at 23 Siandra Crescent.  At around 8.30am on 9 September 2003 he was in his front yard gardening.  He saw three dogs leave number 18 Siandra Crescent and head down towards Astor Drive and go left into Astor Drive.  About 10 minutes later he saw the applicant chasing after the dogs and saw him go left into Astor Drive as well.  About 5 to 10 minutes later the applicant came back in control of the three dogs.  One was put in a van and the other two disappeared down the drive of number 18.  He then saw Mrs Cooling walking up Siandra Drive with assistance and she appeared distressed.  Mr Oates described the dogs as medium size, darkish in colour and he did not know the breed.  The evidence on this occasion identifies the three dogs with sufficient particularity to allow the learned magistrate to conclude the dogs were those the subject of the application.

1. I am satisfied that the learned magistrate had sufficient admissible evidence which allowed him to conclude that the dogs about which evidence had been given by the witnesses were the dogs registered to the applicant with the respondent and about whom the orders were made.  Grounds 2 and 3 must therefore fail.

Grounds 6, 9, 13, 14 and 18

1. The thrust of many of the arguments put by counsel for the applicant was that there was insufficient admissible evidence to support findings that each of the three dogs the subject of the applications had attacked a person within the meaning of the Act, s62. If however there were found to be sufficient evidence, the magistrate erred in the exercise of his discretion to order destruction.

1. Dealing with the first of those issues, the term "attack" appears in the interpretation section of the Act and includes to "bite, menace or harass". The words harass and menace are not defined and should have their ordinary meaning. It was not necessary for the learned magistrate to have been satisfied that each dog actually bit a person as long as he was satisfied each had attacked a person within the meaning of the Act.

1. There were four dates about which evidence was given. As to 16 April 2003, there was insufficient evidence to support a finding of an attack by any dog on that date. As to the 6 May incident involving Mr Groombridge, there was ample evidence that the three dogs menaced and harassed him and that one bit him. Hence there is evidence the three dogs attacked a person. As to the incident on 16 June, leaving aside any question of the dogs' involvement with Mrs Matthews, there is clear evidence from Constable Smith that she was menaced and harassed by the Doberman cross dogs and that all three dogs were seen by her to circle a boy. There is therefore evidence all three attacked within the meaning of the Act. As to the last incident involving Mrs Cooling, again there is clear evidence all three dogs were involved in an attack, even though the lady was unable to identify which dog bit her.

1. Counsel for the applicant submitted the learned magistrate's summary of Mrs Cooling's evidence as that appeared at pages 199 and 200 of the papers was inaccurate.  The inference from the first dot point is that all three dogs bit her.  I accept that was not her evidence.  As to the information in the second dot point, counsel submitted the learned magistrate had obviously looked at a medical report which was not tendered.  Counsel for the respondent sought to tender it.  The learned magistrate refused to allow it and instead evidence was led from Mrs Cooling.  The finding in the second dot point was open to the learned magistrate on the oral evidence led. 

1. Counsel for the applicant submitted the summary of Constable Smith's evidence by the learned magistrate was inaccurate.  The summary was entirely open to the learned magistrate from the evidence given by the officer.  The learned magistrate did not rely on her evidence as to the truth of the assertion that Mrs Matthews had been attacked and bitten, simply that a complaint about such an attack was the reason for the officer's presence.

1. Counsel for the applicant submitted that the learned magistrate's summary of Mr Groombridge's evidence, as it appeared at pages 198 and 199 of the papers, was inaccurate.  Save for the second last dot point, the summary was open to the learned magistrate.  As to that, no particulars of any sort of attack on a jogger were given and there was no evidence at all the dogs of the elderly ladies were bitten. I am satisfied that notwithstanding some errors in his summation of admissible evidence, the learned magistrate had ample evidence before him upon which to base a conclusion that the dogs the subject of the application had attacked a person.

1. Ground 18 refers to a statement by the learned magistrate that he was satisfied the dogs were dangerous. The statement was made in the context of a reference by him to the law as it was under earlier legislation. He recognised that under the Act he did not need to find that a dog was dangerous before making an order for destruction. Nevertheless he said he was satisfied that these dogs were. The learned magistrate had evidence of at least three occasions where these dogs were loose and menacing people, and that on two of those occasions one or more of the dogs had bitten people. The dogs were habitually together when these incidents occurred. It was, in my view, open to make that finding on the facts before him. Ground 18 must therefore fail.

1. That leaves the issue of the exercise of the learned magistrate's discretion.  The learned magistrate noted that the discretion he had appeared wide and that no guidelines were offered to the court (page 202 of judge's papers).  There was no submission from counsel that that was not correct.  The learned magistrate detailed, at pages 203 and 204 of the judge's papers, the matters that he took into account in the exercise of his discretion. The particular objection was that the learned magistrate took into account the failure by the applicant to do something to prevent a recurrence of the attacks when determining whether destruction should occur, that is, the owner's as opposed to the dogs' behaviour. With respect I accept that is very relevant to the issue of destruction  The applicant has failed to put before the Court anything which demonstrated that the learned magistrate made an error in the matters he took into account.  The applicant did indeed, as the learned magistrate pointed out, have the opportunity to put before the court material which might have persuaded him that the dogs' behaviour since 2003 had improved.  He did not, thus leaving the court with nothing but that 2003 picture.

1. I am not satisfied that the applicant has demonstrated error sufficient to warrant interference with the exercise by the learned magistrate of his discretion.  Grounds 6, 9, 13 and 14 must therefore fail.

Ground 7

1. Towards the end of May 2006, Mr O'Rourke attended the applicant's property at 677 Rifle Range Road.  He attended to execute a warrant to seize the dogs Bella, Chloe and Josie and to serve the applications for destruction of those dogs.  When he attended, the applicant was presented with the warrant which identified the dogs and the applications for destruction.  The applicant was asked to present the three dogs named being Bella, Chloe and Josie.  The applicant brought two dogs out, being those he identified as Bella and Chloe.  He then brought a third dog out, which he said was named Ebony, and not one of the dogs the subject of the warrant.  Mr O'Rourke then said:

"I hesitated at the time and had a look at the dog.  I was satisfied that the information that he gave me and information previous that Josie had died some months ago – I think it's one of those reports there, I did not seize Ebony at that point in time.  I was not a hundred percent sure whether this was one of the dogs that was on the warrant."

Further in his evidence he suggested he had now changed his mind because of various bits of information which he had.  It could be said therefore that the learned magistrate could not be certain that the dog left with the applicant in May was in fact Josie.

1. Mr O'Rourke was cross-examined, by reference to his memory of the dogs, about the level of his satisfaction that the dogs actually seized were in fact Bella and Chloe.  He was not challenged about his evidence that the applicant had produced two dogs identifying them as those dogs.  In the circumstances the learned magistrate made findings as to Bella, Chloe and Josie and orders for destruction of all three.  At the time he made those orders he had evidence upon which, in my view, he was entitled to conclude that Bella and Chloe were then held by the respondent as a consequence of the seizure at the end of May.  However he then could not be certain as to the whereabouts of Josie, or indeed even if she were still alive.  In those circumstances he made an order for the seizure of Josie to facilitate the order for destruction.

1. The learned magistrate made no finding that the dog identified by the respondent as Ebony in May 2006 was Josie, nor did he make an order for the seizure of Ebony.  He made an order for seizure of Josie and it will remain a matter for the respondent to establish that Ebony, or indeed any other dog found in the applicant's possession, is in fact Josie before it may execute the order it has obtained.  It clearly runs the risk of further proceedings if it acts to destroy the dog identified as Ebony on the basis of the very vague and tenuous evidence given by Mr O'Rourke at the hearing to the effect the dog might be Josie.

1. Insofar as this ground of the notice to review asserts error on the part of the learned magistrate, I am not satisfied that assertion has been made out and ground 7 will fail.

Ground 4

1. As to this ground, the first submission directed to it related to the end of the applicant's cross-examination of Mr Groombridge, which appears at page 102 in the judge's papers.  The final part of that was as follows:

"MR GILL:  (Resuming)    So you could see the dogs clearly enough to describe them as German Shepherd crosses?……I know a German Shepherd I've had three German Shepherds myself and lived with them for eight hours and so, yes, I know a German Shepherd.

I'm not denying - there are many German Shepherds, I've had German Shepherds most of my life, but I've never had -

HIS HONOUR:   Okay, Mr Groombridge, I think he's finished you can go."

Counsel submitted the learned magistrate deemed the applicant, who was then representing himself, finished.  He stopped the cross-examination and told the witness to go, making no enquiry of the applicant as to whether he had indeed finished.

With respect, this assertion cannot be made out.  At page 101 of the judge's papers, there appears an earlier exchange between the applicant and the learned magistrate.  The applicant then indicated he was finished and it was only as a result of a matter raised by the learned magistrate that the applicant kept on with his questions.  It is evident that the applicant asked what he could about the particular topic.

1. The next submission made under this ground related to the period in the hearing when Mrs Cooling gave her evidence.  Counsel for the applicant referred to pages 75 to 85 of the judge's papers.  He submitted that the learned magistrate:

-          badgered the applicant into agreeing to an amendment to particulars,

-          made suggestions to the witness,

-          looked at a medical report which was not tendered,

-          heard evidence from the witness about what she had been told by others,

-          looked at photos shown to the witness which were not tendered,

-          questioned the witness about the photos,

-          interfered with the applicant's cross-examination, and

-then sent the witness away without ascertaining from the applicant whether he was finished with her.

1. As to the first point, it is apparent from the transcript that the learned magistrate was short with the applicant.  He simply told him to listen rather than just keep talking, and told him that just because an amendment was being sought did not mean it had been proved.  The applicant responded, "Right, okay".  That can hardly be characterised as badgering.  As to the second, third, fourth, fifth and sixth points, the learned magistrate did indeed do them all.  However, that does not mean that in some way the applicant was denied natural justice.  The learned magistrate made no findings based on either the medical report or photographs which were not otherwise supported by oral evidence.  There is no submission the learned magistrate made actual findings based on the hearsay evidence Mrs Cooling gave.  None of these assertions could be said to amount to a denial of natural justice.

1. As to the last two matters, the learned magistrate did interrupt the applicant's cross-examination of this witness.  He did so to advise him to take care in the questions he asked by reference to the evidence Mrs Cooling had already given.  The applicant then began saying he did not know what to do and asked that his friend Jan be allowed to speak.  There then followed a discussion between the learned magistrate and Ms Needham about the timing of the hearing and to the effect "we" would like some legal representation.  Ms Needham then told the learned magistrate that what they were trying to identify with "this lady" was that only one dog bit her.  The learned magistrate pointed out that is what the witness had said.  The learned magistrate did indeed, shortly after that, allow the witness to leave and there is nothing in the transcript which would suggest he asked the applicant if that was acceptable.  However the inference is clear that the applicant accepted that the query he wanted to raise had been answered and that he was not seeking to continue cross-examination.

1. These were the only submissions relating to this ground.  Counsel made no submissions by reference to the matters he raised as to on what basis he suggested they constituted a denial of natural justice to the applicant at the hearing.  Simply because a judicial officer intervenes in proceedings and simply because, with hindsight, the applicant does not like how the hearing unfolded, does not mean there has been a denial of natural justice.  The learned magistrate frequently entered into discussion with the applicant to tell him what he should do and not do, and it was clear from the transcript that the applicant did not listen to what he was told.  I am not satisfied the applicant has demonstrated there has been a denial of natural justice so as to succeed on this ground.

Ground 5

1. In support of this ground, counsel relied on R v Pirimona (a decision of the Court of Criminal Appeal) 136/1998.  The Crown appealed a directed acquittal in that case, one of the grounds being actual or apprehended bias on the part of the trial judge.  Cox CJ dealt with this ground of appeal commencing at 31 and summarised the principles applicable to such a submission.  He said at 33:

   "Having regard to the matters about which I have made specific comment, to the frequency with which he directed at the Crown criticism which was not fully warranted and the degree to which his Honour's questions to witnesses assumed an adversarial character, I have reached the conclusion that a fair–minded person, who had observed the manner in which this trial was conducted, would have been left with a reasonable apprehension that his Honour did not bring to it, and especially to the determination of the factual issue raised on the voir dire so crucial to the Crown case, a fair and unprejudiced mind and that in his laudable determination to ensure that the accused suffered no disadvantage by reason of not being represented by counsel, his Honour unconsciously assumed the mantle of defence counsel to such a degree that his role as judge was overshadowed and could not be performed with the requisite degree of objectivity."

2. In the present case, counsel submitted that the learned magistrate expressed and/or displayed bias towards the applicant.  He referred to a number of passages in the transcript of the proceedings, submitting that they were examples of instances where the learned magistrate stepped over the line identified by Cox CJ in Pirimona's case (supra).  I do not propose to set out each and every one of the passages to which counsel referred, although I will identify them by reference to page and line numbers in the judge's papers.

1. The first reference was page 53 line 30.  The learned magistrate made a remark to counsel then appearing for the applicant during an exchange relating to procedural matters on a date prior to the hearing.  While the comment was perhaps an unfortunate one, it demonstrated no bias on any basis.  The second and third references were page 61 line 40 and page 62 line 1.  These were both clearly flippant remarks to counsel which were perhaps unfortunate but evinced no bias at all against the applicant or his case.  At page 66 line 44, the learned magistrate told the applicant, who was at that point unrepresented, to "let's just get on with it".  This was in the context of the applicant raising an irrelevant matter (access to the dogs).  At page 68 from line 6 to the end, there was a discussion between the applicant and the learned magistrate about the dogs wellbeing, whether or not there should be an adjournment and the issue of legal representation.  Again the learned magistrate made flippant remarks which I accept would have been better left unsaid.  However there is no basis for suggesting they disclose bias.

1. Page 75 lines 1 to 14 sets out an exchange again between the learned magistrate and the applicant.  Counsel for the respondent had sought to amend particulars in the complaint.  The applicant was asked if he had any objection.  He responded by launching into objecting to all the charges and an explanation as to why.  The learned magistrate cut him off and told him it would pay him to listen rather than open his mouth.  He then went on to tell him that it was an application for amendment and did not mean the charges were proved.  The applicant said "Okay".  I have no doubt the magistrate's comments on this occasion showed a level of frustration with the failure of the applicant to listen to what he was being asked.  However they do not on any basis demonstrate he was biased against the applicant.  The same can be said of the learned magistrate's comment at page 87 line 2.  The learned magistrate's turn of phrase was unfortunate, but it must be read in the context of the discussion which preceded it, during which the issue of adjournment was again discussed, with the applicant clearly undecided about just what he wanted to do.

1. While the learned magistrate was prone to make flippant remarks during the course of the hearing, they were not such, even cumulatively, that a fair minded person would have been left with a reasonable apprehension that the learned magistrate did not bring a fair and unprejudiced mind to the proceedings. Ground 5 must therefore fail.

1. Counsel in very general terms addressed the issue of miscarriage of justice.  He submitted the applicant simply did not understand the proceedings with which he was dealing and that the learned magistrate failed to assist him as he should have.  This submission can only relate to the first part of the hearing when the applicant was unrepresented.  In support of this proposition he referred to Tobin v Dodd [2004] WASCA 288 and the summary of relevant principles by E M Heenan J at pars27 and 28. Counsel went on to refer to Blake v R (an unreported decision of the Court of Criminal Appeal) 29/1997.  The sole ground of appeal was that there had been a miscarriage of justice by reason of the manner in which the applicant's solicitor/counsel had conducted the defence.  Underwood J (as he then was), at 1 and 2 dealt with the question of the categories of circumstances giving rise to a miscarriage of justice and canvassed the relevant principles.  He said at 1 - 2:

"In R v Birks (1990) 19 NSWLR 677 at 683, Gleeson CJ expressed the general proposition as follows:

"As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics."

His Honour summarised the relevant principles in the following terms at 685:

'1    A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.

2     As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.

3     However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.'

In Gallagher v R (1985–1986) 160 CLR 392, the High Court held that in cases where an alleged miscarriage of justice occurred by reason of a failure to call certain evidence, the miscarriage is not made out unless the evidence is apparently credible and if believed, might reasonably have led the jury to return a different verdict. The members of that court used slightly different expressions, all to the same effect:

•     'likely to have produced a different result' — per Gibbs CJ at 399;

•'a significant possibility' of a different result — per Mason J (as he then was) and Deane J at 402;

•     'a likelihood of acquittal — per Brennan J at 410;

•     'a real possibility of an acquittal' — per Dawson J at 421."

1. Counsel in his submissions highlighted point 3 in that excerpt and in particular the words "perhaps from some other cause".  I infer, although it was not made clear, that counsel was not basing his submissions on the incompetence of counsel, but asserting a miscarriage of justice from some other cause.  I also infer that cause was the unrepresented status of the applicant, the applicant's lack of understanding of the proceedings and the learned magistrate's asserted lack of assistance.  None of these were individual grounds of review and I can only assume that the submissions about these cases were intended to be considered in respect of ground 4, that is, the ground relating to a denial of natural justice.

1. The learned magistrate on several occasions during the course of the proceedings when the applicant was unrepresented referred to that fact and gave advice about what he should and should not do.  The authorities summarised in Tobin's case (supra) make it clear that a judicial officer must be careful to ensure that he or she does not assist an unrepresented litigant to such a level that the other party is disadvantaged.  A judicial officer cannot conduct a litigant's case for him and, for example, protect the litigant wholly from himself.  The applicant may very well have had a limited understanding of the proceedings.  However he had legal advice before the hearing got under way and he chose for his own reasons to push ahead with the hearing in the absence of counsel when he was given the opportunity of an adjournment so counsel could assist him.

1. With respect, there is nothing in these submissions to support error on the part of the learned magistrate.

Conclusion

1. The applicant has failed to make out grounds of review sufficient to warrant any interference with the orders made by the learned magistrate.  Insofar as one ground was made out, the applicant has not demonstrated that it gave rise to any miscarriage of justice.  The notice to review will be dismissed.